Facing deportation, many may be released

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Two recent federal court decisions in Massachusetts could result in the release of nearly 100 immigrants held under mandatory detention laws in jails across the state, part of a nationwide shift to grant bail hearings for immigrants fighting deportation.

US District Judge Michael Ponsor
ruled in late May in Springfield that Immigration and Customs Enforcement officials could not automatically detain immigrants fighting deportation for an indefinite amount of time without eventually offering them a bond hearing, and he set a standard of six months.

Days earlier, Ponsor had also ruled in a separate case that federal officials were wrongfully using a mandatory detention law to hold immigrants who had been convicted of a crime, but who had been living free since the crime occurred. In dozens of cases, advocates have found, ICE had detained immigrants for crimes committed months or even years earlier, without offering them bond hearings.

The judge found that the mandatory detention law allows officials to hold an immigrant immediately only at the time of their arrest. They can not be tracked down later and detained.

The rulings were based on two separate legal theories, but were part of a national trend in the courts that have struck down or limited ICE’s authority to hold immigrants, many of whom are not criminals or have not been convicted of a crime in years, without bond hearings.

“The theme of all this is . . . limiting the government’s use of mandatory detention and giving people some sort of process of [determining] whether they actually need to be detained while their immigration case is being resolved,” said Adriana Lafaille, an Equal Justice Works legal fellow at the American Civil Liberties Union of Massachusetts, who handled the case involving immigrants detained for crimes that date back months or years.

“The constitutional concerns become very serious,” she said. “I think judges recognize that this is a very unique [immigration] system and it’s very unlike any other civil detention, in that it deprives people of even being considered to be released or to make arguments for release pending their proceedings.”

‘The theme of all this is . . . limiting the government’s use of mandatory detention.’

Immigration and Customs Enforcement officials, asked about the rulings, said they could not comment on ongoing litigation in the courts.

In the past, they have defended the use of mandatory detention laws to hold certain classes of immigrants, including those convicted of aggravated felonies.

Ponsor’s rulings were both class action, meaning they affect all cases similar to the one before the court.

An estimated 100 immigrants are being held in Massachusetts jails pending deportation under mandatory detention laws because of past crimes.

Ponsor’s decisions mean that those detainees, and anyone held six months or longer, will be given bail hearings.

It is not known how many would be granted bail or be able to post the required amount. That determination will largely rest with immigration judges who are reviewing their cases.

Several bond hearings have occurred since Ponsor’s rulings, and while the immigrants have had mixed results, Lafaille said the point was affording them the opportunity to go before a judge.

The case of Clayton Richard Gordon, a 39-year-old father from Connecticut who served in the US Army, reflects the kind of situation facing defendants affected by Ponsor’s recent rulings.

Gordon moved to the United States from Jamaica at age 6 and was living here as a legal permanent resident.

In 2008, he was convicted of possession with intent to distribute cocaine. He was sentenced to a suspended sentence of seven years in prison and three years of probation, and spent less than a day in jail.

Since then, he had been working in construction and was volunteering to build a halfway house for single mothers coming out of prison.

He was also raising a child, now 4, when US agents approached his car with guns drawn in June 2013. They told him ICE had updated its computer system and that officials would seek his deportation because he was not a naturalized citizen. He was held without bond and spent time in segregation units while he was bounced from jail to jail.

“It was almost like a kidnapping; that’s how I can explain it,” Gordon said. He was released in February by an immigration judge after Ponsor made an initial ruling in his case entitling him to a bond hearing.

“They take you from your family without even the chance to speak to a judge,” he said. “This was the last place I would have expected something like that.”

The US Court of Appeals for the First Circuit is scheduled to hear Gordon’s case at the end of the month.

The application of mandatory detention laws has been a focus of attempts to overhaul the immigration system, and it was a subject of a 2012 Boston Globe series that found ICE was secretly jailing tens of thousands of immigrants pending deportation proceedings without ever bringing them before a judge to consider bail.

While immigration proceedings are civil by nature and are often held in private, the constitutional question of holding immigrants without offering them bond has increasingly made its way into the federal court system. A federal judge in California in 2013 ruled that immigrants could not be held indefinitely without bond hearings pending lengthy deportation proceedings, and he set up the six-month standard.

Advocates in New Jersey have challenged the automatic mandatory detention of immigrants who have a viable challenge to deportation — for instance, if they can prove they did not commit a crime that would warrant their being forced to leave the country, or if they otherwise have mitigating factors.

The ACLU also won a case in Washington that was similar to the one involving immigrants detained based on crimes that were committed months or years earlier but who were still ordered held without a bond hearing.

“We are hoping that rulings like this . . . will put pressure on the [Obama] administration to seriously rethink the detention policy,” said David Fisher of the Yale Legal Services Organization, who brought the case in Massachusetts for immigrants held for more than six months.

Ponsor gave ICE officials until July 31 to report on how many immigrants would be entitled to bond hearings under that order and how the hearings would be carried out. Fisher said his group plans to meet with immigrant advocates and lawyers to explain the process.

“An individual’s right to due process is not eradicated simply because he or she has been convicted of a crime at some point in his or her life,” the judge said in one of the rulings.